UNCORRECTED TRANSCRIPT OF ORAL EVIDENCE To be published as HC 643

HOUSE OF COMMONS

ORAL EVIDENCE

TAKEN BEFORE THE

FOREIGN AFFAIRS COMMITTEE

SEPARATE SCOTLAND (FOREIGN POLICY IMPLICATIONS)

TUESDAY 16 OCTOBER 2012

PROFESSOR CRAVEN, DR MURKENS and PROFESSOR HAZELL

DR BLICK and PROFESSOR WHITMAN

SIR JEREMY GREENSTOCK and PROFESSOR WHITE

Evidence heard in Public

Questions 1 - 89

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Oral Evidence

Taken before the Foreign Affairs Committee

on Tuesday 16 October 2012

Members present:

Richard Ottaway (Chair)

Mr Bob Ainsworth

Mr John Baron

Sir Menzies Campbell

Mike Gapes

Mark Hendrick

Andrew Rosindell

Mr Frank Roy

Sir John Stanley

Rory Stewart

Examination of Witnesses

Witnesses: Professor Matthew Craven, Professor of International Law and Dean of the Faculty of Law and Social Sciences, School of Oriental and African Studies, Professor Robert Hazell, Director, Constitution Unit, University College, London, and Dr Jo Eric Murkens, Senior Lecturer, Law School, London School of Economics gave evidence.

Q1Chair: I welcome members of the public to this first evidence session of the Committee’s inquiry into the foreign policy implications of and for a separate Scotland.

The first panel of witnesses is made up of Professor Hazell, Director of the Constitution Unit at University College, London; Dr Jo Eric Murkens, Senior Lecturer at the Law School, London School of Economics; and Professor Matthew Craven, Professor of International Law and Dean of the Faculty of Law and Social Sciences at the School of Oriental and African Studies. A warm welcome to you all; I thank you very much for coming along.

I start with a warning: I have been told that there may be a vote soon. A hazard of giving evidence while the House is sitting is that you may be interrupted by votes. What happens is that we adjourn for 12 to 15 minutes while we go and vote. I am sorry, but that does happen here in the afternoons.

I start with a question to Dr Murkens and Professor Hazell. In your written submission, you write that dissolution is not a realistic option. It is important for us to understand these legal points as we set off on our voyage. Why did you reach that conclusion?

Dr Murkens: The person to ask about dissolution would be Professor Craven, although I do not want to pass the buck. Let me have a first stab.

Chair: I was going to ask him whether he agreed with what you said, actually.

Dr Murkens: As I said in my written evidence, the first problem with dissolution is the idea that we would be reverting back to the status quo ante, prior to 1707. The legal entities that existed at the time exist no more, and no one is seriously suggesting that we could go back to 1707. Even if we did, we would effectively be creating a new English state, which is not a realistic option because of Wales and Northern Ireland. Because of the existence of the United Kingdom, we are talking about a different scenario. Scotland would secede and the rest of the United Kingdom would effectively continue as the United Kingdom, so there would be no change south of the border.

My final point is that dissolution does not correspond to international practice. When we look at the relevant precedent cases-I am thinking in particular of the break-up of the Soviet Union in 1990-91-we see that it was clear that the international community wanted Russia to continue as the continuing state.

A main factor in that case was the existence of nuclear weapons. The international community wanted Russia to take control because the weapons were scattered around other states of the Soviet Union and it was clear that we did not want smaller states with nuclear ability. There is an exact parallel with the United Kingdom: the international community would want the United Kingdom to continue and Scotland to start afresh. For those three reasons, dissolution is not a realistic option.

Q2Chair: Do you agree with that, Professor Hazell?

Professor Hazell: I certainly do. I find it hard to conceive of circumstances other than those in which the rest of the UK would assert quite strongly that it was the continuing state, with all the continuing rights and obligations under international treaties, membership of international organisations and so on, that pertained to the former United Kingdom.

For all the reasons that Jo Murkens has given, I think the rest of the international community would readily acknowledge that the rest of the UK was a continuing state because that would create much greater political stability and in general make their lives easier.

Q3Chair: Do you share that view, Professor Craven?

Professor Craven: I am not going to disagree with anything that has been said. The only example from history in which there has been a dissolution of that kind-when states have recreated the entities that preceded a union-was in the case of the United Arab Republic, which lasted for only three years between 1958 and 1961. That was a very exceptional situation. In all other cases, one would be thinking about either the Union breaking apart and creating two entirely new states or a scenario in which one part of the state continued as the predecessor state, as has just been outlined.

Q4Chair: Dr Murkens alluded to a repeal of the Act of Union 1707, and that is what they base their arguments on-that it is separation. What do you think the international response would be if we separated and effectively became two separate states with no rights at all, both of them having to renegotiate everything?

Professor Craven: For many other states, that would be unappealing. One scenario makes that clear. It would be unappealing for the United Nations, given that the United Kingdom is a member of the Security Council, which has exceptional powers under the UN charter.

If the United Kingdom were to break up and England were then to say, "Well, we are now a new state and seek admission as such", that would mean that the delicate political balance that had gone into the construction of the UN charter would be unravelled. That would open up the question of who might be a new candidate for membership of the Security Council, a debate that has been bubbling under the political surface for many years. I think there would be significant opposition to that idea-[Interruption.]

Chair: As I warned you, we have a vote. I apologise, but you have a few minutes to catch your breath.

Sitting suspended for a Division in the House.

On resuming-

Q5Chair: I forget who had the floor. Professor Craven, had you finished answering my question?

Professor Craven: I had.

Q6Chair: Just remind me what the question was. It was on the 1707 Act of Union and what the international implications would be if that argument were to succeed.

Professor Hazell: Very briefly, I think the rest of the international community would react with dismay, because if the UK Government and/or the Scottish Government seriously put forward that proposition, we would be creating a much more unstable situation and, for the rest of the world, a much more complicated situation. They would not welcome either of those things.

Q7Chair: Do you agree with that?

Dr Murkens: Yes, I do.

Q8Mr Baron: We have talked a little bit about dissolution and separation. Can I press you a little bit on continuation and secession, which, for some, is the more favoured option of the three? As we know, this is when the existing entity, country or kingdom separates into two entities and there is the more powerful, larger entity, which is the continuing state, and there is the smaller successor state, which probably would not then inherit all the rights and international treaty obligations. Let us paint a scenario that there is a disagreement between the component parts of the United Kingdom on what model of state secession is adopted. How and by whom would that be resolved?

Dr Murkens: Can I just pick you up on something you said? You said that the successor state would inherit the rights and obligations-

Mr Baron: No, I said that the successor state would not. They would, in a way, have a clean slate. Let me be absolutely clear about that. What happens if there is that disagreement?

Dr Murkens: Disagreement between?

Mr Baron: Between the component parts on what model of state secession should be adopted. How and by whom would that be resolved?

Dr Murkens: I am not entirely sure if I understand your question. By component parts, do you mean the component parts of the rest of the United Kingdom?

Mr Baron: Yes.

Dr Murkens: I am not sure if there is room for dispute. I am sure that there is, but I cannot envisage the lines of that dispute unless Wales and Northern Ireland wanted to get a better deal out of the Union for themselves. My assumption is that rUK-the rest of the United Kingdom-would step into the shoes of the current United Kingdom. I have to say that I have not given any thought to domestic repercussions and domestic rebalancing.

Q9Mr Baron: What about the component parts in the sense of the remainder of the United Kingdom and Scotland as to how exactly it would play out?

Dr Murkens: I do have a view on that and I would like to talk about that in the context of the European Union, because it very much depends on the terms of Scotland’s membership in the European Union, and that will have repercussions in, say, the context of the euro and Schengen on its relationship with the United Kingdom.

Mr Baron: Do you want to flesh that out now?

Dr Murkens: I am happy to.

Chair: We have a series of questions coming on the EU from Frank.

Professor Hazell: It is pretty unlikely that the Scottish Government would seek to advance a radically different view from the UK Government, because it would not be in their long-term interest to do so. If Scotland is the successor and so is starting with a blank sheet, it needs friends. The UK Government will be the Government best placed to ensure that it has friends, particularly in relation to an application to remain or rejoin, or whatever words we choose, the European Union. It would be very strongly in the interests of Scotland to remain onside with the UK.

Q10Mr Roy: In relation to the European Union, there is a great debate in Scotland about what would happen if Scotland did become independent. Would we, for example, automatically become a member of the European Union? If so, what are the implications for Scotland and for the rest of the United Kingdom of that decision?

Dr Murkens: I am happy to answer that question. Let me say right away that there is no doubt in my mind that, from a formal perspective, Scotland would qualify as a new member state with the European Union. It has been a part of the EU-

Q11Mr Roy: Automatically?

Dr Murkens: No. My only issue is with the word "automatically". Independence would be adding a new member state to the European Union. That has repercussions for the operation of the treaty and, in particular, the institutional and financial provisions of the treaty. It would need to be updated. Voting rights in the Council would need to be recalculated and a number of MEPs would need to be reallocated. That requires a treaty amendment and that requires unanimity by all 27-next year it will be 28 plus-member states. There is nothing automatic about that process.

I am happy to talk about voting rights in the Council and the MEPs if you would like, because you do see significant differences there. Voting rights, as we know, are weighted. Currently, the United Kingdom has 29. If Scotland left and withdrew from the Union, I think the United Kingdom-the rest of the United Kingdom-would continue to have 29 votes.

The next two countries are Spain and Poland. Their population sizes are much smaller than the United Kingdom’s, even without Scotland, and they have 27. Italy, Germany and France have 29. So I think there is an argument to be made that nothing would change in relation to the voting rights.

Q12Mr Roy: What would Scotland have?

Dr Murkens: If we look at the comparator countries-Denmark, Finland and Slovakia, which are roughly an equal size-Scotland would have seven votes in the Council. That is largely uncontroversial. It becomes much more interesting when we look at MEPs. Scotland currently has six MEPs, but the comparator countries, Denmark and Slovakia, have 13. So if the SNP insist on automatic membership-in other words, we just wave Scotland through-Scotland would continue to have six MEPs, whereas if Scotland negotiated properly and said, "But Denmark and Slovakia have 13", Scotland could more than double its representation in the European Parliament.

The problem is that the number of MEPs is capped at 750 plus the president, so any increase in Scottish representation would lead to a necessary reduction in rUK, so it would come out of the 72. Would the rest of the United Kingdom be happy to see such a dramatic reduction in its representation? I leave that question open.

Q13Mr Roy: Still on Europe and particularly opt-outs, if Scotland became independent and separated away, would my constituents in Motherwell and Wishaw still have the same opt-out rights as the Chairman’s in Croydon?

Dr Murkens: No. By opt-outs I assume you are referring to the euro and Schengen. It is a condition of membership for all new applicant countries that they join the euro and join Schengen. No exceptions have been made. Exceptions have been requested, but none have been granted. The only two countries that have opt-outs from the euro are Denmark and the United Kingdom. Those opt-outs were secured in the Maastricht treaty negotiations in 1992. That offer has not been extended to any new applicant state. To put it differently, all current states, even if they do not have the euro as a currency-I am thinking of Sweden in particular and the Czech Republic-all member states are legally obliged to adopt the euro, and it would be the same for Scotland.

Q14Mr Roy: So my constituents would not automatically be entitled to opt-outs. Would the Chairman’s constituents in Croydon be entitled to keep their opt-outs?

Dr Murkens: Yes.

Q15Mr Roy: Even though it was the United Kingdom that negotiated the opt-outs?

Dr Murkens: Yes. The opt-outs would continue for the rest of the United Kingdom.

Q16Chair: Can you amplify and say why?

Dr Murkens: As I explained in my first answer, the rest of the United Kingdom would assert itself as the continuing state and would also be recognised by the international community and by the European Union as the continuing state of the current United Kingdom. As I have just illustrated-looking at the numbers-from the European perspective, formally nothing much would really change in relation to the United Kingdom. There are significant changes of course in relation to Scotland. It is Scotland that needs to be accommodated, not the United Kingdom.

The other area to consider, because it is an exact parallel, is the Schengen common travel area. It is also an obligation for every new state to join Schengen. That means that a German or a French national travelling from the continent could fly into Scotland without showing a passport, but if that person then wanted to travel to England, they would have to go through border control and associated immigration control, so there would have to be an internal border between Scotland and the rest of the United Kingdom, because the opt-out for rUK continues.

Q17Mr Roy: I come back to the point made about how it is not automatic that Scotland would become a member of the European Union. If it is not automatic, would there be a fast-track avenue open to the Scots for membership? Would there be some sort of temporary agreement that would allow a fast track? What are the repercussions for the cost? Who would pay those costs for any temporary agreement?

Professor Hazell: May I come in briefly here? These are uncharted waters. There is no precedent for what we are discussing.

Q18Mr Roy: My constituents would like to know before they vote.

Professor Hazell: I am sorry that we cannot give them more confident or certain answers. Essentially, our answers are of two kinds. We are trying to explain the formal, legal position in international law and under the treaties and other rules of the European Union. Then, coming on to your question, we have to put a very important gloss on that, which is the likely political realities.

The formal legal position, as Jo has said, is that Scotland would not automatically remain a member of the European Union. In our strong view, Scotland would have to reapply. But, depending on the political context, that application would almost certainly be fast-tracked, in particular if the independence referendum had gone smoothly, the UK recognised the vote of the people of Scotland and said-as the Prime Minister has continued to say-"If the people of Scotland vote for independence, we the UK Government would not stand in their way." The UK Government would then be morally obliged to facilitate an independent Scotland in becoming an independent state and joining the international community in all its different forms. This is a possible political context where, especially if the UK Government strongly urges its fellow member states to give a favourable response to a Scottish application and to fast-track it, I think it is very likely that it would be fast-tracked. One of your subsequent witnesses, Graham Avery, has put in a submission all about this, and you might want to ask him about it too.

Q19Mr Roy: Can I just press you? I do not know if you are all agreed, but if it is not automatic and if there is a fast track, there must be a cost to that fast track. Who would pay it? Would the people of Scotland pay to be fast-tracked, or the rest of the European Union or, indeed, the rest of the United Kingdom?

Dr Murkens: I have no idea who pays for the application process. Are you talking a financial cost?

Q20Mr Roy: Absolutely.

Dr Murkens: I do not know. If I could add to what Robert Hazell was just saying, he was pointing to the domestic context and said that if negotiations domestically went well then the United Kingdom would support Scotland. To that I would only add that there would have to be a parallel negotiation process with our European partners, because this would be the creation of a new independent state not only in a British context but in a European context, and they would be monitoring this very closely. A lot depends on how Scotland negotiates with our European partners. So if the Scots say, "Sure, we want to be a member of the European Union and we will adopt the euro and Schengen", and they do not raise an issue about tax rebate or structural funds, I think that Scottish membership would be fast-tracked. But if Scotland uses its newly found sovereignty and independence to pick and choose and to say, "We want to be a member of the European Union but we do not want the euro or to be part of Schengen and we would like a better deal on fisheries and the structural funds"-those are the main issues relating to the European context, I think-then it may take longer, because the European countries have something to say about this and may not be too pleased about Scotland’s negotiating position. A lot depends on the attitude that Scotland brings to the table.

Q21Mr Roy: Do you have anything to add, Professor Craven?

Professor Craven: No, I am happy to defer to my colleagues on this issue.

Q22Mark Hendrick: From what has been said, on votes in the Council, for instance, the remainder of the UK, as you say, would keep 29 votes. I forget how many votes you said that Scotland would get.

Dr Murkens: Seven.

Q23Mark Hendrick: Because there is no diminution of the UK votes, those seven would effectively give us a slightly smaller percentage to the other 27, the effect being that the other members of the European Union would see it as a slight dilution. On MEPs, you say that because there is a cap, Scotland could possibly double the number of MEPs at the expense of the remainder of the UK, which seems strange. On the question of the euro and Schengen, the fact that border controls could be forced on the Scots would mean that effectively a new border-the first since Hadrian’s wall-would have to be constructed across the UK to bring those border controls in.

If it is an SNP Government playing hardball with the European Union, is there not a grave danger that Scotland could be caught between two stools, in that it is leaving the United Kingdom, but finding the negotiating conditions for what it wants in the European Union-if what it wants is similar to what the UK has at the moment-virtually impossible to get? Obviously, they will be playing hardball in a way that makes negotiations very difficult, and if the remainder of the UK decided that it did not want this, it could simply throw the spanner in and veto any new treaty. Let’s presume a new treaty does arise. Although it probably would not be, can I ask whether a referendum would then be required in this country for Scotland to accede to the European Union?

Dr Murkens: I would like to say that we are definitely now entering the realm of speculation, if we hadn’t already, and I’d like to repeat what Robert said: we are making educated guesses here. It is very difficult to get any information out of European Union officials, because they do not want to talk about speculative cases, but you do hear word that there is a lot of good will towards Scotland. Especially if it is a consensual divorce, we would not be talking about a country emerging from a war-torn zone or anything like that. There is a lot of good will towards Scotland and we can work on that assumption. It is for the SNP not to make that good will disappear.

Q24Sir Menzies Campbell: I hope this is not speculative: fast-tracked or slow-tracked, this eventually has to be ratified in the form of a treaty, and treaties require unanimity.

Dr Murkens: Yes.

Q25Sir Menzies Campbell: Can I just remind you of the position in relation to Cyprus, when objection was taken to Cyprus’s application for what were reasons wholly unconnected to its merits, but related to the dispute between two other countries? Is there not a risk that, however well designed or received by some a Scottish application might be, countries seeking to make another political point could take a veto position? I was interested in your reference to fishing. For example, if Scotland says, "Well, all our shores, coasts and 200 miles out are totally barred to anyone but Scottish fisherman and fishing boats", that could well provoke a reaction from Spain.

Dr Murkens: The Spanish position has already attracted a lot of press attention, and I think that is key.

Sir Menzies Campbell: In Spain?

Dr Murkens: Yes, in Spain, and the creation of a newly independent Scotland would clearly create a precedent within the European Union. The Spanish would not be happy about that. They are not saying anything because for them, it is not a domestic concern.

Sir Menzies Campbell: They have other things on their mind.

Dr Murkens: Yes, but of course it is a matter that they are concerned with, which is why I said that there is a European dimension to the independence debate as well, which should not be ignored. The common fisheries policy is something that Scotland needs to conform to and it cannot go it alone and say, "You cannot fish in our waters." That would be contrary to European treaties and the European spirit. So, yes, there is a sensitive European context to bear in mind and you are absolutely right that accession requires unanimity. Every state-including the United Kingdom or Spain-would have a veto and would have something to say.

Professor Craven: The example of fishing is quite a good one. One of the things it points out is that the idea of a disjunction or a temporal gap between the separation of Scotland and England, and the subsequent process of accession to the EU, would be extremely problematic. It opens up the possibility of what you do in the meantime with the regulation of trawling vessels in the North Sea. That applies not only to fishing vessels, but to the status of Scottish nationals dotted around Europe and Scottish companies. It would lead to a level of legal insecurity which I think most people would want to avoid. So if it is going to happen, the concern for the most part is to make sure that it happens seamlessly; that there is a seamless accession and a seamless separation.

Q26Sir Menzies Campbell: Can I follow up on that? You cannot go from one situation to another in a day. There is bound to be a gap of the kind you described.

Professor Craven: You would obviously then have to plan what happens in the interregnum as part of the negotiation process.

Q27Mike Gapes: When countries apply to join the European Union, they have to go through a process of signing up to the acquis and there are various chapters opened and closed. We know from the experience of the dispute between Slovenia and Croatia that there can be delays, which are not to do with the EU per se, but with some territorial issues. We also know from the dispute over Cyprus and Turkey in NATO that it therefore causes a problem with Turkish accession to the EU. Turkey has been negotiating for many years to come into the EU. How optimistic can we be that something of that kind might not arise and that it might not take years for Scotland actually to sign up, even if there was no fundamental problem with it joining the EU?

Dr Murkens: As I said earlier, I do not think there is any problem with the acquis. When it comes to the implementation of European laws, the United Kingdom is a model member of the European Union. EU law is fully applied in Scotland as well as elsewhere in the United Kingdom. To that extent, they are not concerned that Scotland does not meet the formal conditions of membership. It does.

Q28Mike Gapes: You or your colleague referred to Spain. If I am in Spain and I worry about the Basque country or Catalonia and I see potential precedents that might cause difficulty for me internally, I might then be problematic-not necessarily for anything relating to the successor states to the UK-but for wider issues.

Dr Murkens: As I said, these are politically sensitive issues that need to be handled with care at the negotiation process. I really do not think that it is in the interest of the European Union for Scotland to be left outside. We know that the EU is about enlargement and bringing as many countries as possible under its umbrella. From that perspective, Scotland is clearly an easy candidate. EU law already fully applies and I do not think it would be left outside the EU for very long. With Spain and Catalunya, you refer to a sensitive issue that has an international dimension, but we will have to wait for the Spanish response. We do not know.

Q29Chair: Professor Craven, you alluded in your remarks just now to North Sea oil and you touched on it in your written evidence to us. Does international law gives us a clear answer to how boundaries are drawn when it comes to issues like North Sea oil? Is there a clear explanation of how it is carved up?

Professor Craven: As far as the UN convention is concerned, it stipulates that, in the case of the continental shelf and fishing zones, they should be agreed on by the relevant parties. So that is the starting point, that there should be an agreement.

There are then principles that have been used, having been applied historically to delineate these maritime zones. The principal one that has been used for maritime zones is the equidistant principle, which is the idea of drawing a line outwards from the coast, at right angles to the course of the coast. Of course, it is difficult to apply both in concave and convex coastlines and there are several cases in which it has not been applied. However, I think that the starting point in most maritime delimitations is this idea of equidistance, supplemented if necessary by a principle of equity-so, trying to give either party their fair share depending on the course of the coastline.

That does not provide you with a ruler-sharp delineation of what the line is likely to be, but it gives you a fairly close idea. If you were to draw a line down the eastern coastline of the UK and then draw a line out at right angles to that line, you would have a pretty close idea.

Q30Chair: Correct me if I am wrong, but there is an international convention on-

Professor Craven: This is the UN convention on the law of the sea.

Q31Chair: What happens if we cannot get an agreement? Who is the arbiter?

Professor Craven: There are provisions. Of course, this is usually dependent upon having two independent states, so trying to decide it before you have got an independent state is somewhat more complicated. But if there were two independent states, you could go to arbitration or you could take the matter to the international court.

Q32Chair: But who would be the arbitrators?

Professor Craven: It would depend upon the particular provision-

Q33Chair: The parties would appoint arbitrators?

Professor Craven: Yes. You can go to arbitration under various different agreements. Under the UN convention itself, there is provision for arbitration.

Q34Chair: So there is a legal basis.

Time is almost up and these are the questions on our minds. Are there any points that any of you would like to make before closing?

Professor Hazell: Briefly. There was one question that remained unanswered, I think. If a Scottish application were accepted by the other member states of the EU and that required a treaty change through a new accession treaty, the question was, "Would that trigger a referendum in the rest of the UK?" I think that we can offer a slightly more confident answer to that question, because Parliament last year enacted the European Union Act 2011, which specified in great detail many different circumstances in which a referendum would be triggered. But my recollection of that Act is that most of those circumstances, and perhaps all of them, were circumstances where the treaty change involved-putting it in layman’s language-the surrender of more powers to Brussels. And I think it is correct that a simple accession treaty, for example the accession treaty for Croatia becoming a new member state next year, will not require a referendum. So I think that we can fairly confidently say that an accession treaty, of its own, will not require a referendum in the UK.

Dr Murkens: That is correct. The accession of new applicant states is expressly exempt from the referendum requirement under the European Union Act 2011.

Q35Mark Hendrick: Can you tell us about the transfer of competencies as well? Competencies will be transferred, not to Brussels but obviously to the new Government in Edinburgh.

Professor Hazell: But that is not a court.

Dr Murkens: You are right. There is also a transfer of competencies to the European Union, or rather the balance changes the more members join, but that is maybe an inherent contradiction within the Act, or an inconsistency. None the less, it is an express exemption.

Q36Chair: Professor Craven, any final words or thoughts?

Professor Craven: No.

Q37Chair: I thank you all very much indeed. It really is appreciated. You are the experts and we are very much the laymen, and so your guidance is particularly helpful. Thank you.

Examination of Witnesses

Witnesses: Dr Andrew Blick, University of Kent and Senior Research Fellow at the Centre for Political and Constitutional Studies, King’s College London, and Professor Richard Whitman, University of Kent and Associate Fellow, Chatham House, gave evidence.

Chair: Our witnesses for the second session are Dr Andrew Blick from the University of Kent, a senior research fellow at the Centre for Political and Constitutional Studies at King’s College London, and Professor Richard Whitman from the University of Kent, an associate fellow at Chatham House. I thank you both very much indeed for coming. It is appreciated that you have spared the time. Apologies for running late, but that is the way democracy goes. I will hand the first questions over to Mark Hendrick.

Q38Mark Hendrick: It states in your paper that the implications for a reduced UK role in Europe in the event of Scottish independence would be "profound and irreversible". How much do you feel that a reduced UK role in Europe would be affected, not only in terms of representation in Council or in the European Parliament, but in the weight that the UK throws about more generally?

Professor Whitman: Thank you for the question, because it gets to the heart of the thrust of what we wanted to say, which was that the situation alters for the UK in the sense that it moves out of the very top tier of EU member states. It would no longer be one of the big three, if you like. There are certainly questions that would arise about some more general influence that being in the big three gives, which is considerable. I can elaborate on that in a moment, if you like.

In terms of population of the constituent member states, it puts the UK into fourth place. If there is Turkish accession, the UK would obviously slip further down the list. If you combine that with the current relationship that the UK has with the European Union, the questions that are being raised about what the nature of the relationship should be in the future and our decision to remain outside the single currency and Schengen and so on, it creates a situation in which the UK’s European Union policy, or its influence within the European Union, goes backwards rather than forwards.

Q39Mark Hendrick: Would you see that reduced influence being a help or a hindrance to the Eurosceptics in this country who would like to pull Britain-the UK-out of the European Union?

Professor Whitman: That is not something that we considered in our submission, but I think that it has some bearing on the debate about whether the UK can get the best out of the European Union. Our view is that, as the situation stands at the moment, the UK has lost influence within the European Union as a consequence of its decision to remain outside the single currency and Schengen. A process of, let us call it deunification of the UK, which would diminish the UK in terms of its formal representation within the EU institutions, would diminish its power and influence.

What we have here is an interesting combination. The European Union is clearly going to move on as a project-fiscal union and all that. At the same time, that will be parallel with the debate that we are going to have about Scottish independence and with the possible move towards Scottish independence.

What is very difficult for us to judge is the European Union that Scotland might accede to and the UK would find itself in at the moment of deunification. The one thing that we can be certain of is that the UK would have a lower level of influence. Whether you view that as a good thing for the UK in terms of a Eurosceptic position, or whether you feel that it provides an opportunity in terms of giving the UK a comfort zone in the relationship it should have with the European Union, is worth further consideration.

Q40Mark Hendrick: The previous witnesses who gave evidence said that even with Scotland gaining independence, we would still have 29 votes in the Council of Ministers. Do you think that retention of those 29 votes means that we can continue to punch with the same weight as at the moment?

Professor Whitman: That system changes, of course, because under the Lisbon treaty the voting system changes within the European Union, so from 2014 the qualified majority voting system will be replaced with a system based on a majority of member states and member state populations. Obviously, the UK will have a smaller population in voting terms, so it will have a reduced voting weight even under the new system.

What is interesting is that between 2014 and 2017 there is provision to call a vote on the old system of qualified majority voting, so it may matter what votes transition to the UK. However, it is probably for academics and train spotters to ponder what situation we may find ourselves in.

Formally, there is obviously the reduction in the total number of votes, which moves the UK out of the zone of the biggest member states, and the unknown is how that is read by other states in the European Union, and how they will think about the UK’s power and influence, its capacity for agenda setting and so on, and coalition-building in the EU.

Q41Mark Hendrick: Finally, on the reduction in the number of MEPs with the number of Scottish MEPs doubling at the expense of English, Welsh and Northern Irish MEPs, we have seen successive enlargements reduce the number of our MEPs-I speak as an English MP and a former MEP. What is the relevance of that? Does it mean that the European Parliament is less relevant to the lives of people in this country because we do not have the representation we had, or does it not matter?

Professor Whitman: The issue of having fewer Members of the European Parliament does matter, but probably what mattered more in terms of influence and the capacity for people to understand their relationship with their MEP was the move towards multi-member constituencies, which is separate from what happens to the UK if there is Scottish independence.

There will obviously have to be a recalibration of how many MEPs are apportioned to each constituency and each region in European Parliament elections. It will be interesting to see how that plays itself out with a reduction in the total number. There will be consequences for the dynamics of European Parliament elections. Obviously, if the number of Members in a constituency is diminished, there will be a potential for some parties not to be represented in multi-member constituencies. That could be profound.

Q42Mr Ainsworth: What about the remainder of the UK’s opt-outs and special arrangements negotiated by this Government, that Government and the other over a period? How will our new status and our reduced status affect that and our ability to maintain them? I am talking not about an independent Scotland, but about the remainder of the United Kingdom.

Dr Blick: I would like to make two points on that question. First, there was an interesting discussion earlier about the exact nature of Scotland leaving and how that is interpreted legally. In my view, there is a legal case for saying that the UK is dissolved, and that there are two successor states.

Q43Mr Ainsworth: This is very important. You disagree with the previous panel.

Dr Blick: I am saying there is scope for argument, because London is clearly acquiescing in what is going on. There is no unilateral declaration of independence. We are saying to Scotland, "If you want to go, you can go." We are agreeing to that in advance, and it is important to emphasise that it is extremely unusual, if not unique, in international law for a country to agree that part of it can just go.

Contrast that with Catalonia, which has been told by Madrid that it cannot have a referendum. That is the more standard position in international law. It is unusual for a state to have a position where there is a clear understanding that bits of it can go. That began really from the very particular circumstances we have had in Northern Ireland for some decades, dating back to the 1940s. It is a clear position that Northern Ireland can go if it wants to, but that has now been extended to Scotland. I would add that it would now be very difficult to deny it to Wales if they wanted it, and even to England.

Q44Mr Ainsworth: But how unusual is that? The same situation pertains in Canada. The same situation pertained in the former Soviet Union.

Dr Blick: Not an identical position in the former Soviet Union. If you look in the legal text books, they struggle to find as clear an example where, particularly in the case of Northern Ireland, we have a clear undertaking both in the Good Friday or Belfast agreement and in the Northern Ireland Act 1998 that the sovereignty of the UK is subordinate to the self-determination of the population of Northern Ireland. That is a highly unusual arrangement.

Quite a lot of legal work has been done on this that shows that that is virtually unique. The point I am making is that this is all very unusual and it is very difficult to say precisely what the legal position is and therefore very difficult to make assumptions about who can claim what once this has happened, if it does happen. It also surprises me to read that the Foreign Office is not planning in any way for this to happen, but that is another matter.

This is a very unusual position. If we are talking about the ways in which the UK can wield power, there is a second unusual position here, and this will affect our ability to wield power within the European Union, and that is the issue of soft power, which goes beyond all these issues about how many votes you have on the different bodies and what are your material resources.

This goes to things such as your actual aura on the international stage, which are difficult to quantify. Things such as your prestige on the international stage and your cultural status would be severely impacted if Scotland went. Part of our ability to wield power is dependent on our being seen as a successful multinational state. With Scotland gone, that takes a real knock.

There will be some real changes if Scotland were to go. It will have a real cultural impact on what the UK looked like and its ability to wield soft power. I would like to put those things into the debate. I am talking about how the UK will actually get things done within these institutions and on the international stage in general, and about the legal uncertainty of all this.

Q45Mike Gapes: Can I take you to the issue about Schengen referred to earlier? What was said was quite emphatic. If Scotland were to join the European Union, it would do so on the basis that it would have to at some point implement Schengen, and that would then mean that there would have to be some kind of border position put in place.

As I understand it, the position of the Scottish Government, the SNP, has been that after independence there will not be any borders; crossing the border will be just as quick and easy as it is now. Are they assuming that the remainder of the UK will also join Schengen, or are they assuming that Schengen will not apply and that there will be some kind of opt-out? Is there provision for an opt-out from Schengen from new states that join the EU?

Professor Whitman: If I could take the last point first because that is the clearest. As was said very clearly in the previous session, the opt-outs on single currency membership, on Schengen, and also for the Danes on the defence aspects of the European Union were granted as part of and post-Maastricht.

Dr Blick: To the UK and to Denmark.

Professor Whitman: Absolutely, yes. So all the states that have acceded to the European Union subsequently have had to accept that single currency membership is an obligation and that Schengen membership is an obligation.

In the case of a new state acceding to the European Union, as happened for the Croatians, those are obligations, but they do not happen straight away. There are transition processes until that state can meet the requirements. One of the requirements in Schengen, quite practically, is that you have configured airports so that you can separate out your air travellers from those who are travelling within Schengen and those who are not.

The position on new member states is very clear. These are areas where a state cannot seek to negotiate. What you can negotiate on-this is where things like fisheries are relevant-is transition arrangements that exist in the period from when you accede until points in the future in which you fully comply with the acquis. We saw that, for example, on the environmental policy in the past for states in central and eastern Europe. That is really where the negotiations are. Otherwise you are just accepting the acquis, as you suggested earlier. It is a screening process.

Q46Mike Gapes: You referred to airports. I am interested in the land border. Is the implication of Schengen-the border between a Schengen state and a non-Schengen state within the EU-that there will have to be border posts and passport checks for anyone coming from Scotland to England, driving through Berwick-upon-Tweed or wherever? What would the implications of that be?

At the moment, we have a United Kingdom and a different relationship with the Irish Republic. Could a relationship be worked out between the UK rump and Scotland that was different from the requirements of Schengen? How would that apply to German, French or Italian EU citizens who happened to fly into Scotland from the Schengen area?

Professor Whitman: I think there are significant implications for the rump UK. Where we would be under pressure in not joining Schengen is that we would have to make sure that our own border controls for people who are entering the UK from outside Schengen are, shall we say, sufficiently robust so that we do not create problems for the Schengen zone.

It is pretty unusual that there would be a requirement to impose a stronger land border between ourselves and Scotland, partly because we are an island and also because the points of entry to the UK are more controllable than for those states that have long land borders with non-Schengen zone countries. At the same time it raises questions for the Irish Republic as to whether they would feel comfortable remaining outside Schengen once an Administration in Scotland had taken the decision to join Schengen. The Irish Republic decided to stay outside because of the passport union with the UK. There is a whole range of issues-

Q47Mike Gapes: And implications for Northern Ireland as well.

Professor Whitman: Absolutely. The single currency is one issue and there are obviously things to sort out around that. But Schengen, practically, is one of those things that would require the most working through on the part of other member states, Scotland and the UK, to make it work in a way that does not lead to absurdity.

Q48Mike Gapes: But there would be potential costs if you have to bring in some kind of passport check regime between Scotland and Northern Ireland, or Scotland and England. That would involve expenditure both in the Scottish budget and the rest of the UK budget.

Professor Whitman: I am sure it would for Scotland. To pick up a point that was made earlier about who pays the costs in terms of accession, it would fall for the most part in Scotland in terms of preparing for membership. It would have to create the infrastructure to negotiate and to prepare for membership and in addition, obviously, whatever implementing measures were needed. From the EU side, the Commission would be the prime actor and negotiator in all those areas to screen Scotland’s case for membership to make sure that it complied with all the obligations of membership.

Q49Mike Gapes: Can I move on to the question of the euro? It was said earlier that there would also be an obligation on a new member state to join the euro at some point. We know that Poland and Sweden are not signed up to the euro at this stage, although they have this obligation. Would there be any timetable under which a country would have to join the euro?

Professor Whitman: It would have to comply with the criteria for accession to the euro, in terms of the criteria for government debt, convergence of its exchange rate and so on, but, of course, if you are in a monetary union with the rump UK, which Scotland would be, it raises questions for the UK as to what we feel about our relationship with the single currency. On the point about the time period, it is really when you can satisfy Brussels, basically, that you can comply.

Q50Mike Gapes: As I understand it, the current position of the Scottish Government is that they wish to keep the pound sterling; they do not wish to join the euro. If that is the case, will that cause problems for their potential membership of the European Union?

Professor Whitman: It would be an interesting point for discussion. It does create a problem.

Q51Mike Gapes: It does? Because there is an obligation to join the euro?

Professor Whitman: Yes.

Q52Mr Roy: Will you clarify something that was said about border control? If a post-independence Scotland was in the Schengen area and the rest of the United Kingdom was not, on the motorway-the M74 between Glasgow and Carlisle-am I correct in saying that there could possibly be a border control set up on the United Kingdom side regardless of what I say, as someone who lives in Scotland?

Professor Whitman: If you travel around the European Union, you discover that member states often set up temporary border controls between themselves for policing purposes. Where we would see extra complexity is if the UK remained outside most of the provisions on justice and home affairs and Scotland was in. That is an extra complicating dimension to the reasons states often have borders; to be able to police such things.

Q53Mr Roy: Therefore, if the rest of the United Kingdom decided to put a border patrol on that motorway that crosses the border just south of Gretna Green, before you get to Carlisle, the rest of the United Kingdom would be perfectly prepared to do so, because of Scotland’s decision to have a free movement of people and labour that maybe the rest of the United Kingdom does not have?

Professor Whitman: It is not something I have studied closely, but it is possible for any member state to put temporary border controls up. Obviously, the logic of the European integration process has been to eliminate such borders, because of the inefficiencies that arise as a consequence of having to do checks at borders. So it would go against the grain of the logic of free movement and, obviously, it would have a disruptive effect on business and so on. It is probably an area in which the UK would be sensible to think through what kind of relationship it wants to have to the Schengen zone in the future and how it would cope with having a state as a neighbour that was in the Schengen zone, and having that sort of border arising.

Q54Sir Menzies Campbell: It goes against the grain at the moment, does it not, that the United Kingdom chooses to stay out of Schengen? That is based, as I think we all know, on some pretty strong views, especially in England, about immigration and asylum. Is not the answer to my colleague’s question clearly in the affirmative? If you have the rest of the United Kingdom, which is not in Schengen and has anxiety about immigration and asylum, and to the north of that, an independent Scotland, which does not share these anxieties, there is nothing to stop the rest of the United Kingdom-in this case, England-establishing controls in order to prevent access from the country to its north.

Dr Blick: Yes, I think it is quite plausible that Scotland may wish to pursue a more liberal immigration policy than the one we have. It is hard to imagine a less liberal one being pursued, so I can imagine that scenario developing, yes.

Q55Sir Menzies Campbell: Well, it is a matter of public record that Scotland is interested-I put it as neutrally as I can-in having a more liberal approach. Indeed, it could have that more liberal approach whether it was in the European Union and part of Schengen, or outside the European Union.

Dr Blick: Yes, irrespective of that, and given issues such as the geography of Scotland, the amount of space there relative to the rest of the UK, it would seem a logical policy to pursue. Also, given the existence of a Scottish diaspora around the world that they might wish to encourage to return home, as it might be presented, why not? That could lead to certain political issues within the rump UK that may lead to the scenario you are talking about. I am not an expert in that area, but I don’t think there would be much that could be done to stop the rump UK from attempting to impose that sort of control.

Sir Menzies Campbell: It would be some trick to manage the border between Carlisle and Berwick-upon-Tweed, but I suppose it is theoretically possible.

Q56Rory Stewart: As the only Member of Parliament who has got "Border" in the name of my constituency, this has generally been seen as more of a romantic idea than a real one. What are the implications for my constituents-what are the implications for people who are running businesses? What I am taking from this is that there is a degree of uncertainty here. If I were a businessman in Carlisle-and 55% of the telephone calls we make from Carlisle are into Scotland, and an enormous amount of the business we do from Carlisle is sent to Scotland, and vice versa-is this not a recipe for uncertainty in what is already an economically deprived area of northern England?

Professor Whitman: To come back to the discussion in the previous evidence session, it is clear that you need to have the choreography. So the uncertainty as to what Scotland’s relationship is to the European Union happens as closely as possible in sequence with independence. Clearly, there are folk in Brussels who will look very closely at what is happening in the opinion polls when it comes to the lead-up to the referendum vote itself, and who will have prepared for the contingency that you have to sit down and negotiate with representatives of Scotland on their relationship to the European Union. As others have already suggested, Scotland is an easy accession candidate, but we should not rule out the possibility that there will be areas of difficulty for the reasons that have been suggested: that it has to be a unanimous agreement on the part of all the existing member states and that there are possibilities for trip-ups. The example has been given of the Croatian accession, that has been used to deal with some bilateral differences between Slovenia and Croatia in the end stage. There is uncertainty for anybody who deals with these European Union issues, with the negotiating process. We know what the process is like in terms of opening and closing chapters, which will be straightforward for Scotland, but there are issues, because of the relationship that the UK has to the European Union, that make life much more difficult for Scotland in seeking to accede to the European Union.

Dr Blick: I would add to that that it seems to be getting more complicated still, given that when we consider all this, we must be clear that we don’t know exactly where the EU will be in two years’ time and how that will be developed. This complicates things further. Also, if we believe what we read, it looks as though the UK will not accept the full jurisdiction of the European Court of Justice, which creates all kinds of complications in the relationship between the UK and the EU in the area of justice and home affairs. This will be very complex for the UK regardless of whether Scotland votes yes to independence or not. It adds in a whole new tier of negotiations and footwork that has to go on. If we then try to run that alongside trying to negotiate something for Scotland as well, it could become hideously complex and issues which become difficult could pop up that we cannot foresee.

Q57Mark Hendrick: If the Scots are not forced to implement Schengen area border control between England and Scotland, does that not make England a de facto member of Schengen, in that people can obviously move easily into Scotland from other parts of the European Union and then quickly slip into the UK? Our own policy in dealing with immigration and the threats of terrorism took place because we were an island nation and it was easy to implement. If Scotland becomes a sort of back door, such that Schengen is effectively implemented, is that not going to cause us problems?

Professor Whitman: The London Government would be very interested in following very closely the way that Scotland operates its border controls. Clearly, we would want to have confidence that people were screened effectively at borders, because there would be that possibility of onward movement into England. The more you look at this area, the more you think that this is irresolvable, frankly, unless the rump UK joins Schengen as well. That would be the easiest thing to happen, but politically it is also clearly very unlikely. One finds oneself engaging in these acts of contortion to see how you can make that work.

Chair: Thank you very much. I am sorry that that half an hour raced away. We appreciate your coming along and helping us on this.

Examination of Witnesses

Witnesses: Sir Jeremy Greenstock GCMG, Former Ambassador, Director of the UK UN Association, and Professor Nigel White, Professor of Public International Law, University of Nottingham, gave evidence.

Chair: The third and final session of the afternoon looks at the impact on the remainder of the UK internationally. I am delighted to welcome Sir Jeremy Greenstock, a former ambassador with tremendous diplomatic experience and currently director of UNA-UK; and Professor Nigel White, Professor of Public International Law, University of Nottingham. Gentlemen, a warm welcome to both of you. I will hand the questioning over to Rory Stewart to kick off.

Q58Rory Stewart: This is really for Sir Jeremy. One of the most challenging things is for us to try to think through how other countries would perceive the UK after Scotland left. I understand that is a very hypothetical question. Can you give us some of your instincts on the basis of your experience of what a country such as China, Russia or Brazil would make of the UK without Scotland? Would it affect in some intangible way our international reputation?

Sir Jeremy Greenstock: I think the most important element of an answer to that is that most other countries would not see the UK in its rump status-in its 55 million population status-as being much different from the UK they knew and were used to. There would be some elements of slight reputational damage. We would, after all, be a federation that had lost part of its body. There would be a lot of publicity about the actual nature of the split between Scotland and the rest of the UK. There are members of the United Nations who are sometimes reasonably content to see the UK in trouble or struggling, because they have memories of colonial times, or they have prejudices over things such as the Falkland Islands.

I think it is relevant to this debate that Northern Ireland is part of our history and will continue to be whatever happens to the future of Northern Ireland and the Republic of Ireland. However, diplomats would not really notice that much difference in their daily dealings with the rest of the world in the international institutions and in our bilateral relationships. On the whole, most members of the United Nations, whether or not they enjoyed a bit of schadenfreude, would get on with the business of not wanting to cause fuss over somebody else’s internal business. The United Nations is very clear about the responsibilities of member states for their own domestic business. A United Kingdom of 55 million would not be much different in most respects-there would be some details to sort out-from a United Kingdom of 60 million-plus.

Q59Rory Stewart: In terms of our intangible soft power reputation and the way we might be perceived in Iran, the Middle East or countries that have had a longer, more traditional relationship with Britain, is that going to be affected? There is currently a tendency for people to overestimate our power in certain regions of the world, based on historical experience. Might this contribute to a recalibration of the way that somebody on the Arab street thinks about Britain?

Sir Jeremy Greenstock: I rather doubt it. If you look at the long sweep of history, we have, after all, given up quite a large proportion of our sovereign’s territories over the decades. The United Kingdom has received and continues to receive a certain amount of credit for the way in which it has decolonised and allowed other people self-determination. If the people of Scotland, in the eyes of members of the UN, have gone through a process of self-determination, the United Kingdom has managed that in a sensible and consensual way and there is a good relationship between Scotland and the rump UK, I do not think that intrudes that much on the UK’s reputation in terms of its daily capacity to do business.

The influence of the UK in the international institutions is made up of its material contribution in finance or in other ways-in forces, perhaps, or in kind-its diplomatic energy, policy making and relationships and the quality of its personnel. I do not see why any of those three areas would be so significantly affected by a Scottish decision to go independent as to make the conduct of British diplomatic business internationally seem that much different.

Q60Rory Stewart: Are you concerned by the idea, to which the previous witnesses referred, that Britain would no longer be one of the big three in the European Union and that that might also affect the way in which people perceive us?

Sir Jeremy Greenstock: That is possible, but we would have some considerable energy left in what is called the rump UK. It is quite a large rump and would be the third-largest member of the European Union in population terms. It would still have the same number of votes in the Council of Ministers. It remains noticeable that the two countries of the European Union that are most at ease in dealing with global business are France and the United Kingdom because of the accumulation of experience from their history. I do not see why that should not continue to be the case.

Q61Rory Stewart: Finally, Sir Jeremy, are there particular strategies that the Government should pursue and that the Foreign Office needs to think about in order to anticipate this, whether it is thinking about lobbying for the number of members we retain in the European Parliament or about addressing potential anxieties from countries such as China? Are there any things we can do to reassure the world in the case of Scottish independence that it is business as usual, so that the broadly optimistic picture that you have portrayed-that people are not going to see this as a significant diminution-proves to be correct? Are there any things that one would be doing as the Foreign Secretary to make sure that is the case?

Sir Jeremy Greenstock: One important thing to remember is that if the business of the break-up is handled sensibly and consensually, if Scotland and the rump UK are saying the same things and supporting each other internationally, and if they are clearly allies and partners in the institutions that they work in internationally, that will minimise the reputational and practical effect on what we are able to do diplomatically around the world. So it does depend whether crises occur and whether arguments blow out from our domestic affairs into other parts of our international business. But if it is handled well, I would have thought that, if we continue to be energetic in our diplomatic activities under the Foreign Secretary, then we will not notice that much difference.

Q62Mark Hendrick: Sir Jeremy, you made the point that a reduction in the UK population from probably 60 million to around 55 million will have an impact. To follow on from that then, presumably, if the Welsh left, at 3.5 million, and the Northern Irish left, at another 1.5 million, we would be down to about 50 million and still probably in the same position with just England. Are you effectively saying that, really, the United Kingdom could afford to break up totally and, for the most part, England could represent rump UK in the same way that Russia does for the Soviet Union? In fact, if you go to China, they do not have a particular word for the United Kingdom, they tend to call it Yingguo, which is "England", and if you go to America they very often refer just to London and rarely say the United Kingdom. Effectively, are you saying that the United Kingdom could afford to break up and it not make a great deal of bother to anyone internationally?

Sir Jeremy Greenstock: If you look at it the other way around, if you see that there is a country with the capability, the history, the qualities of personnel and the adaptability to international life that England would still retain, you would have a really quite powerful and capable state working in the international institutions and in bilateral relations. Obviously, if you have got a machine and bits drop off it, there is more than an aesthetic consequence. It will not look terribly good that we have lost bits and pieces of our federation. It means that peoples have not wanted to stay with the English, as the dominant part of the United Kingdom. But there would be very real capabilities left, and London, as a capital city, has a huge cosmopolitan power and reputation, which sometimes-we could discuss this in another context-is underplayed and underused by the United Kingdom. The Olympics brought that out, perhaps, to a great extent.

We have considerable qualities that would be left with a rump UK, even if the Welsh and Northern Irish, as well as the Scottish, decided to leave us. But I am not denying that there are degrees to this and if this process went on-if even Cornwall decided that it might follow the same example-it would not look as good as if we stayed together. It is much preferable to stay together, and I see it as being in the interests of everyone in the United Kingdom that we should stay together as a federation.

Q63Mark Hendrick: Would you call England and Wales together "Britain"?

Sir Jeremy Greenstock: I don’t have a view on that.

Q64Mark Hendrick: Would someone still be British even though Scotland had left?

Sir Jeremy Greenstock: "Britain" tends to refer, at least as a minimum, to one island, as the "British isles" refers to a collection of islands. I think that would have to be decided by negotiation at the point of break-up.

Q65Mr Roy: Can you outline the process that Scotland would have to go through to become a fully fledged member of the international community? In relation to the legal and political factors, what are the most important to gain that recognition from the international community?

Chair: I think that is one for you, Professor White.

Professor White: For membership of the United Nations, as I said in my paper, all the practice indicates that Scotland would be treated as a new state and would have to apply for admission, and that would require support from both the Security Council and the General Assembly under article 4 of the UN charter, but that can be done relatively quickly, in the space of a few months, unless there are any serious objections, particularly in the Security Council, and I cannot see that happening. So that would be the quickest way to get international recognition as a state. Traditionally, it would also require other states to come out and recognise it; but again, in the case of Scotland, I do not think that that would be problematic. Those states would readily recognise Scotland as an independent state. It does not have any of the problems that, say, Kosovo or Taiwan has as a state.

Q66Mr Roy: So the normal democratic set-up or make-up of the Scots would be-

Professor White: With a settled Government, territory and population, and no disputes, I cannot see it being a problem for it to be quickly accepted in the international community. I think that within the UN that would be the case, and within international law as well.

Q67Mr Roy: So once that happens and we are in the UN and we talk specifically about the Security Council, what is the likelihood of states using Scottish independence to block the rump UK continuing permanent membership of the Security Council?

Sir Jeremy Greenstock: In the context of this particular item-permanent membership-and reform of the UN Security Council, it is worth remembering that more than 20 years have gone by of quite continuous debate about how UN reform and reform of the Security Council should proceed. As far as membership of the Security Council is concerned, absolutely nothing has happened. I think that the reasons for that, which perhaps we do not need to go into in detail now, are much greater and have much greater weight and continuity than would be disturbed by the arrival of Scotland as a member of the United Nations and the need for the UK to explain, or airily not to explain, that it was the continuing state.

Russia, which I think is the nearest example, although it is not similar in every respect, following taking the position of the USSR on the Security Council, has not really lost its diplomatic power as a big player because it divided into 15 states. I do not see the UK, if other things were equal, and I do not think UN reform is going to burst into a flower of life over the next five years-

Q68Mr Roy: Sorry, but is that the point that the rest of the United Kingdom would be making in relation to ensuring that there is not a debate? Would it be pointing towards what happened with Russia and the USSR?

Sir Jeremy Greenstock: What I am saying is that the decision of the Scottish people to go independent and the arrangement of the division would not be something that would of itself open up a new energetic line of Security Council reform.

Q69Mike Gapes: I understand from Professor White’s paper that under article 23 of the UN charter, the members of the Security Council are still referred to as the "Republic of China" and "USSR", even though it is the People’s Republic of China and Russia. Is it possible that if there were difficulties for the rest of the UK we could throw that spanner in the works and then quickly get support from the other Security Council members?

Professor White: In the charter the names have not changed, but obviously in meetings with the Security Council it is the Russian Federation.

Q70Mike Gapes: I understand that, but it is a tactic that we could use if necessary to ensure that things move more quickly.

Professor White: The permanent membership has survived those two issues: the credentials moving from the Republic of China to the People’s Republic and Russia continuing the Soviet Union. They were both huge events within the United Nations-major changes, potentially-and the permanent membership survived and the Security Council survived. I would agree with Sir Jeremy that that is the likely scenario, although I must say that I am a supporter of Security Council reform. I probably have to say that to cover myself. I do not think that this event is likely to trigger it, unless the political factors come together to make that happen, but the other permanent members will not be in favour of it, so without them moving, the chances of change are limited.

Sir Jeremy Greenstock: There is another small precedent, which is that there is an implicit reference to Germany and Japan as enemy states in the UN charter and they have wanted to get that excised, but the wish of most member states is to not open up the charter, unless various things are brought together in a collection and reformed. That is one of the main reasons why there has been no reform of the charter, and that shows that it still applies.

Q71Mr Roy: What happens if one of the things that are put on the table is that the rest of the United Kingdom effectively has unilateral nuclear disarmament foisted on it by the Scottish Government and an independent Scotland? How would that affect the membership prospects of Scotland and the rest of the United Kingdom?

Sir Jeremy Greenstock: There is only an implicit assumption that the nuclear status of the permanent members was a factor in them being permanent members. It was much more relevant at the time of the UN’s creation that the states who demanded and won permanent membership were the victors of the second world war, with or without nuclear weapons. There is an assumption that nuclear weapons confer status on the states that hold them, but it has not made the claim of India, which is recognised as a valid claimant of a permanent seat if there was reform, any more powerful. It has not made the case for Pakistan, which opposes reform of the Security Council, any more powerful. I would make the assumption in the formal questions that you are looking at that, in this area, the nuclear weapon status of the UK and the non-nuclear weapons status of Scotland will not be relevant to the things that we are talking about.

Mike Gapes: But the UK is a very important state within the non-proliferation treaty and is one of the countries that are explicitly given a special status within the non-proliferation treaty. What would the implications be, following up on Frank’s question, for the position of the membership of the non-proliferation treaty of a rump UK or of an independent Scotland, both at the time of that decision and, presumably, when the arrangements for Trident were being worked out? The Trident submarines may be retained in a non-nuclear weapons state while belonging to another state, moved somewhere else, or scrapped. I am interested in the implication of the NPT and the memberships of the NPT.

Sir Jeremy Greenstock: I do not know whether Professor White agrees, but the continuing status of the UK as the holder of the permanent member seat in the Security Council and in all of its other presences in UN bodies would be a continuing status as the state that committed itself to those obligations under the NPT. Scotland would be a new entity, without the status of anything that the UK had in that respect. I do not think you would see any difference, nor would other member states of the United Nations see any difference, in the continuing obligation on the rump UK in respect of the NPT.

Professor White: If you see the break-off of Scotland from the UK as secession-I would definitely see it as a secession; a consensual one, but a secession-then the UK would continue its obligations under the rump UK continuous obligations: so, the NPT.

Q72Mike Gapes: And would be a signatory of the NPT without having to reapply. Scotland would have to apply as a non-nuclear weapon state.

Professor White: As a non-nuclear weapon state. Where the nuclear weapons are, then that is your problem, basically. Again, that would be a transitional issue between the two new Governments.

Q73Mike Gapes: Is that the same as the position with regard to when Ukraine hosted the Soviet nuclear weapons and then they were taken out?

Professor White: Yes.

Q74Sir Menzies Campbell: I was thinking of a supplementary to what Sir Jeremy said a moment or two ago. The fact that India has nuclear weapons has made, as it were, no difference to its case for membership of the Security Council. Likewise, on the other side, the fact that Brazil does not have nuclear weapons has had no effect on its case for membership of the Security Council. I suppose that Japan, too, falls into the same category. It is not that nuclear weapons are irrelevant. They are never irrelevant, but on this particular issue of membership of the Security Council, they may not have the kind of popular salience that is often attributed to them.

Sir Jeremy Greenstock: I think that is correct. As the decades pile up since 1945, the nuclear element of what we are talking about gently continues to fade. It is the other qualities of these states that matter almost exclusively.

Q75Sir Menzies Campbell: And in the case of what we can call the United Kingdom, at least for the moment, our commitment right across the spectrum-to peacekeeping, economic aid, children, and health. As the United Kingdom, we have been very good members of the United Nations. We pay our dues. We do not hold it back because we do not like the Secretary-General, or do other things that have happened in the past. That is what people would assess in any question as to whether or not what one might loosely call England was truly the successor to the United Kingdom.

Sir Jeremy Greenstock: Yes. It is what I referred to earlier as "material contribution". I have not yet seen, I think, anything written in this debate about development assistance, and what remaining obligations either a rump UK or Scotland would have, in terms of providing development assistance, as a moral and political obligation, to the developing world. I would have thought that the United Kingdom would continue to want to be a major player in the development field, and that Scotland would want to play a proportionate part, and that together we would be doing about the same thing as we are doing now as a single UK, but that is something that might be brought into the equation.

Sir Menzies Campbell: The question that-

Chair: Sorry to interrupt, but I did promise Sir Jeremy, when he agreed to give evidence, that he would get away at about half-past 4, and he has agreed to stay till 10 minutes to 5. Professor White is happy to stay.

Q76Sir Menzies Campbell: I can help him, Mr Chairman. I think you have already answered the questions that I was going to ask. I was going to ask you whether there would be any consequences for the United States’ relationship with either Scotland or what remained of the United Kingdom. I deduce from your earlier answers that you would not now address this specifically, but that you would not anticipate any difficulties.

Sir Jeremy Greenstock: No. Most friendly states within the European Union and the NATO alliance would say, "That is the business of the peoples of those islands. We will try to retain good relationships with whatever entities emerge."

Chair: Sir Jeremy, if you want to go, please feel free. Professor White, I hope you can stay. I have a couple of questions for you, anyway.

Q77Mike Gapes: Jeremy referred to NATO. The position of the Scottish National party at this moment-it may change this weekend-is to leave NATO. If it changed its position and wanted to stay in NATO, would it automatically become a member of NATO, or would it have to apply to join?

Sir Jeremy Greenstock: I can give only a political answer; Professor White might want to give a legal answer. It would be a new entity as far as NATO was concerned, and there would have to be discussion and probably a treaty arrangement for it to remain, as Scotland, a member of NATO.

Q78Mike Gapes: In terms of overflights, basing, issues to do with intelligence co-operation, and use by the United States of facilities that happen to be located in Scotland, these things would have to be negotiated from new, would they?

Sir Jeremy Greenstock: May I just say that, as I see it, Scotland becomes a new entity in the international field in almost every respect, and therefore whether they were treaty arrangements or not, arrangements with other states would have to be made by Scotland, or with Scotland?

Q79Mike Gapes: What I am trying to get at is that at the moment we have things like status of forces agreements with the US-

Sir Jeremy Greenstock: All of that.

Q80Mike Gapes: That would not be automatically continued; it would have to be negotiated from the beginning.

Sir Jeremy Greenstock: The larger rump would carry the right of continuation.

Q81Mike Gapes: But that "larger rump" refers to facilities that exist in Scotland, as well as in England and elsewhere.

Professor White: The Vienna convention does sit there on the succession of states to treaty obligations. It suggests that in the case of certain treaty obligations, the state breaking off would be bound by them, but the normal principle is that the seceding state-the newly independent state-would start with a clean slate. It would obviously be in everyone’s interests to agree those bilateral agreements and SOFAs very quickly, but that would be the principle if you see Scotland breaking off as a secession, with the creation of a new state and the UK continuing as the successor state to the old UK.

Q82Chair: Professor White, I do not think you were here when Dr Blick was giving evidence. He spoke about the possibility that the dissolution approach may be preferred by some over continuation and secession. Do you have any views on this particular point?

Professor White: I looked at it in relation to UN practice, and UN practice is very clear that most of these cases are treated as cases of continuation and secession, with the continuation of the larger part. The larger remaining state continues the rights and duties of the predecessor state, and the state breaking off becomes a new state and has to start afresh.

The line of precedent is pretty strong in the UN, and I have traced back some legal memos from the case of Indian partition in 1947 that support that, which I will probably have to add to my written submission. There is more legal evidence than I managed to put together. The latest example is Sudan. It is probably not a good example to refer to in some ways, but with its independence, South Sudan was treated as a new state that had to apply for membership, and the existing Sudan just continued its obligations. That line of thinking has continued to 2011 in the case of the independence of South Sudan, so I cannot see the case for dissolution. I do not really see the point about it being voluntary. Some of these are voluntary examples that I am pointing to. Serbia and Montenegro in 2006 was a consensual process.

Chair: It is certainly not voluntary in Croydon, that’s for sure.

Q83Mr Roy: On a totally different point that intrigues me, if Scotland did become independent, would there be an entitlement to say to the rest of the United Kingdom, "We now have a quarter of the flag, and therefore the Union flag, especially the blue part of it, has nothing to do with you, and we want you to take it off"? Would Scotland be entitled to do that, or say that?

Professor White: Many wars have been, and could be, fought over flags, but I think that the United Kingdom as such, with the Union of Scotland and England at its heart, would cease to exist. So there have to be those sorts of consequences, with negotiation of precisely what the emblems of the rump UK and Scotland will be.

Q84Mr Roy: Would the rest of the United Kingdom have to ask this new Scottish independent country if it could continue to use Scotland’s part of the flag of the Union?

Professor White: I do not think that is a legal question. Formally and legally speaking, if you see it as a case of continuation, which I do, then it would not. Legally speaking, it would not, but politically and practically speaking, these things need to be negotiated. You do not want to end up like Greece and Macedonia, for instance, forever arguing about the flag.

Q85Chair: On that point, another non-legal question: can you see any circumstances in which embassies would be shared?

Professor White: There is that possibility, again, of negotiating with other countries. I believe we have done that recently with Canada in some instances, to share premises, so yes, it is entirely possible to negotiate that.

Q86Rory Stewart: Are there any examples of rump states retaining all the emblems? As far as I am aware, Russia, Serbia, etc., changed their flags and emblems when they broke up. The rump of England would be very unusual if it tried to keep the Union Jack, which included a Scottish emblem on it, after Scotland left, wouldn’t it?

Professor White: Yes. It is an interesting question, and now that you have asked it, I will have to go away and check.

Q87Rory Stewart: Presumably, every emblem on our embassies, every emblem on the uniforms of our soldiers, which have the royal coat of arms, would be difficult-

Professor White: In the examples that you have given, yes, the continuing state did adopt a new flag. I would have to look at all the other examples to make sure that this is always the case. Again, I think it is a question of politics rather than law.

Q88Mike Gapes: As I understand it, the Scottish Government position is that the Queen would remain the Head of State, and they would remain in the Commonwealth. Would that mean that the stamps would still have the Queen’s head on?

Professor White: Probably.

Q89Chair: To be resolved. As you can see, Professor White, just engaging in this dialogue poses more questions than we have answered. However, it has been a fascinating afternoon for us. Thank you very much indeed for coming along. If any of you have any further thoughts-you mentioned some things you might think about-please do not hesitate to write to us. We value your input.